(dissenting). In this case the facts show without dispute that the turn-table was only five and one-half feet from the west line of a traveled street. There was no sidewalk upon the west side of the street, but there was a well-developed and well-used foot-path, which answered the ■ same purpose as a sidewalk for foot passengers. The night was very dark and stormy, a night wherein it is most difficult, to exactly keep the road. The plaintiff offered to show that, people upon dark nights frequently fell into this unfenced and unprotected hole.
No person nor railroad corporation is justified in making near a public road an excavation of this kind, — a hole so near the highway “that travelers, in the ordinary aberration or casualties of travel, may stray or be driven over the line, and be injured by falling into the excavation,” Whart. Neg. § 349. This hole was so near that one stumbling would, by his own length, in falling, go into it. Hardcastle v. South-Yorkshire Ry. Co., 4 Hurl. & N. 67; Barnes v. Ward, 9 C. B. 392; Hadley v. Taylor, L. R. 1 C. P. 53; Cooley, Torts, 660; Wood, Nuis. § 271; Add. Torts, § 222.
This turn-table was a death trap to passers-by upon the street on a dark night, and, in my opinion, the case should have been submitted to the jury. The defendant, under the proofs, was negligent as a matter of law, and the negligence of the plaintiff was a question, of fact.